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Lachaux: Judgment on serious harm

Articles caused serious harm in four of the five claims

On 30 July 2015 Warby J handed down judgment on preliminary issues in Lachaux v AOL (UK), Independent Print Ltd & Evening Standard Ltd. The judgment dealt with whether the articles complained of caused or were likely to cause Mr Lachaux serious harm for the purposes of section 1(1) Defamation Act 2013, and whether the claims against the Huffington Post (AOL) were a Jameel abuse of process. Other issues dealt with included whether the articles complained of referred to the claimant and what they meant about him, and to what extent if any section 1 had affected the common law principles that govern the determination of these matters.

The court reached four main conclusions as to the law:

(1) Section 1(1) Defamation Act 2013 requires a claimant to do more than prove that a publication bears a meaning with an inherent tendency to affect, in a seriously adverse way, the attitude of other people to the claimant. It must be proved on the balance of probabilities that the publication has in fact caused serious harm to the claimant’s reputation, or will probably do so in the future.

(2) It may be possible to prove this by inference. However, the intention of Parliament was that the court should consider all the relevant circumstances, including what has actually happened after publication, and not only the words and their meaning.

(3) If a claimant already has a bad reputation in the relevant sector of his life that is a relevant circumstance. But House of Lords authority establishes that as a rule a defendant may not prove bad reputation by showing that the same allegations about the claimant have been published on other occasions, by other people, or by the defendant. That rule prohibits these defendants from relying on publications by others whom the claimant has not sued. The rule in Dingle remains good law.

(4) This general rule is modified by section 12 Defamation Act 1952 which has the effect that where the claimant has sued for libel in respect of another publication of the same allegations, that fact is admissible in mitigation of damages.

Applying those propositions of law to the fact of the case before it the court found:

(1) In four of the five claims the claimant has proved that the publication complained of has caused serious harm to his reputation. He has done so by inference from the facts that each involved the publication of imputations with a seriously defamatory tendency, in a serious article, in a serious news publication, to a large or at least substantial number of people; from the fact that he is known by or to a substantial number of people who, it can be inferred, read the publication complained of in one of the relevant places; and from the fact that his reputation amongst those readers in those places to whom he is not yet known is a matter of real significance to him.

(2) The claimant had failed to prove that publication of the second Huffington Post article caused or is likely to cause serious harm. It repeated, at the end of a long piece, some of the allegations that had featured in an earlier, more prominent, Huffington Post article. That earlier article is the subject of one of the present claims, so that section 12 of the 1952 Act is applicable. The second article had a very small readership. It cannot be inferred that it caused serious reputational harm. It has now been taken down.

(3) The four claims in respect of publication causing serious harm to reputation are not a Jameel abuse. That issue does not arise in respect of the second Huffington Post article, because it fails to cross the threshold of seriousness laid down by s 1(1).

The case is the first example of a fully contested trial, featuring live evidence and the cross-examination of the claimant, on an issue of serious harm under section 1(1) Defamation Act 2013. Warby J took the opportunity to lay down some general principles as to how such section 1 issues should be approached in future.